APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement.  

APPLICANT STATES:  That he should have received at least a 40 percent service connected disability rating.  He served many years in the military which was cut short because he became disabled.  He is very sick and requires medical care. He should have received a disability rating larger than the 20 percent awarded by the military.  The VA awarded him a 50 percent rating effective 1 October 1993, which is a huge difference in the rating in only 60 days.  The rating given by the medical board was unfair and unjust. 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered the Army on 2 January 1992, after having over 13 years of prior active and inactive service.

A 8 April 1991 medical counseling supplement to screen soldiers for potential disease threats associated with Operation Desert Shield/Desert Storm indicates that the applicant stated that he lost about 20 pounds when he came to Saudi Arabia, that he had smoker’s cough, had diarrhea since coming to Saudi Arabia, had many burning urinations, had nightmares, and had vivid memories of dead bodies and people who had been tortured in Kuwait City. 

A 22 March 1993 Medical Evaluation Board (MEB) indicated that the applicant had reported to the Great Lakes Naval Hospital on 12 January 1993 and was seen by a psychologist. The applicant was AWOL from his unit after he was confronted by the police for fondling a 15 year old girl.  He had been experiencing suicidal thoughts because of the incident.  The applicant disclosed past history of sexual abuse, and over the past two years had complained of hopelessness, insomnia, and suicidal ideations mostly because things weren’t going well.  After his tour in Saudi Arabia, he returned to experience severe financial pressures and indebtedness.  The applicant viewed his marriage as frustrating - that he and his wife had had marital difficulties.  The applicant was admitted to the hospital, and received individual and group therapy.  During his hospital stay, tests revealed major depression with a personality disorder not otherwise specified with passive, aggressive, and avoidant features.  He was also experiencing symptoms of post traumatic stress disorder (PTSD).  On several occasions he experienced flashbacks of when he was in Saudi Arabia.  When his commanding officer visited him to inform him of the legal disposition surrounding the alleged sexual assault, the applicant began to hyperventilate, became diaphoretic, and cyanotic.  The MEB diagnosed the applicant’s condition as major depression, dysthymic disorder, PTSD, acute hyperventilation syndrome resolved, and personality disorder, not otherwise specified with passive aggressive and avoidant features.  The MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB). 

A 14 July 1993 PEB determined that the applicant had a major depression requiring medication and psychotherapy with mild impairment of social and industrial adaptability (recommended disability percentage of 10 percent), and PTSD manifested by flashbacks, anxiety including hyperventilation syndrome, and phobic reaction rated as mild (recommended disability percentage of 10 percent).  The PEB stated that  the other conditions listed by the MEB were found to be neither unfitting nor ratable, however, he was unfit to perform the duties of a Sergeant in his specialty as a recruiter, and recommended that he be separated with severance pay with a disability rating of 20 percent.

The applicant was discharged on 31 August 1993 for physical disability.  He was awarded severance pay in the amount of $31,308.00. 
 
A 26 April 1995 VA rating decision awarded the applicant a 50 percent service connected disability rating for PTSD, a 10 percent rating for tinnitus, a 10 percent rating for diarrhea, a zero percent rating for bilateral hearing loss, a zero percent rating for chronic bronchitis, a zero percent rating for headaches, and a zero percent rating for burning urination.  Service connection for major depression and hyperventilation was denied.  A separate evaluation for dysthymic disorder and memory loss was not warranted.  Service connection for fatigue and twitching was not well grounded.  The applicant has a combined disability rating of 60 percent.
A 20 February 1996 VA rating decision awarded the applicant a zero percent service connected disability rating for muscle pain.

In the processing of this case an advisory opinion was obtained from the U.S. Army Physical Disability Agency (USAPDA) (COPY ATTACHED).  An official of that agency states that a MEB described most of his problems as being associated with his severe financial, marital, and criminal problems, which would appear to be sufficient to make any normal person depressed.  Further, he had PTSD reactions that were moderate, with symptoms diminishing upon starting medication.  The PEB determined that his mental condition was mainly due to his then current temporary external stress factors affecting his life, his PTSD was essentially mild, and his ability to function in the civilian world, without the continuing external stressors, was only mildly impaired. That official stated that the VA rating was not relevant and material to the findings of the PEB, and he recommended that the applicant’s request be denied.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has less than 20 years service and a disability rated at less than 30 percent.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The medical evidence of record supports the determination that the applicant's unfitting condition was properly diagnosed and rated at the time of his discharge.
The foregoing is supported by the opinion from the Physical Disability Agency.

2.  The fact that the VA, in its discretion, has awarded the applicant a 60 percent disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.  

3.  The rating action by the VA does not necessarily demonstrate any error or injustice in the Army rating.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  Any rating action by the VA does not compel the Army to modify its rating.

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  The applicant's contentions do not demonstrate error or injustice in the disability rating assigned by the Army.
The applicant has submitted neither probative evidence nor a convincing argument in support of his request. 

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director